Argued
April 12, 2017
Appeal
from the Superior Court of the District of Columbia
(CF2-7876-15) (Hon. Todd E. Edelman, Trial Judge)
Benjamin Miller, Public Defender Service, with whom Samia Fam
and Mikel-Meredith Weidman, Public Defender Service, were on
the brief, for appellant.
Sharon
A. Sprague, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney at the time the
brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt,
and Tamika Griffin Moses, Assistant United States Attorneys,
were on the brief, for appellee.
Before
Blackburne-Rigsby, Chief Judge, Thompson, Associate Judge,
and Ruiz, Senior Judge.
Thompson, Associate Judge
A jury
convicted appellant Lejeezan Toudle of unlawful possession of
a firearm (felon in possession); carrying a pistol without a
license outside a home or business ("CPWL"); and
possession of an unregistered firearm. In this direct appeal,
appellant challenges the trial court's denial of his
motion to suppress statements he made during his post-arrest
custodial interrogation. He primarily argues that statements
his interrogators made during his interview subverted the
advice they had earlier given him about his Miranda
rights, [1] invalidated the waiver he had made of
those rights, and resulted in a confession that was
inadmissible. He also contends that the investigators'
tactics rendered his confession involuntary. Although we
agree that improper statements by an interrogator after a
suspect has heard, understood, and waived his
Miranda rights may, in the totality of
circumstances, invalidate the waiver prospectively, we are
persuaded that this is not what occurred in this
case.[2] We are also satisfied that appellant's
confession was voluntary. Accordingly, we affirm.
I.
Background
The
relevant facts are as follows. In the afternoon of June 9,
2014, Metropolitan Police Department ("MPD")
officers responded to a "look[-]out for an individual
who was possibly carrying a firearm" at 16th Street and
Kalorama Road, N.W. Upon arriving at a location in the 2400
block of 16th Street, N.W., one of the officers observed
appellant, who fit the look-out description, walking
northbound on 16th Street. As the officers, who were in
uniform and driving a scout car, parked and began to exit the
car, appellant noticed them, and he fled before they had a
chance to speak with him. The officers followed on foot.
During
the chase, appellant turned into a parking lot and stopped at
the rear of a vehicle, where an officer who had caught up
with him saw appellant "ducking down almost to conceal
himself . . . ." The officer testified to seeing
appellant "move his arm . . . away from [his] body and
towards the [vehicle]" and then hearing "the sound
of a metal object hitting the ground."[3] Appellant fled
again, this time tripping and falling shortly upon taking
flight. The officers apprehended and detained appellant and,
upon returning to where the vehicle was parked, found a
firearm beneath the vehicle. The officers then arrested
appellant for possession of the firearm.
At the
police station, Investigators Elias Danho[4] and James Gamble
interviewed appellant. The video recording of that interview,
which we have reviewed, shows appellant arriving into a small
room, where the investigators undo his handcuffs and chain
his feet to the floor. The substantive interview began with
Investigator Gamble telling appellant:
[D]on't say anything yet, but you're looking at a
felon in possession of a firearm charge . . . . So today,
because you're a felon, it's a felon in possession of
a firearm. It's a little more serious . . . . So this is
your chance to kind of roll me through what's going, what
happened out there . . . . So let me read you your rights,
you think about . . . what we gonna talk about and then you
let me know what we're gonna do[, ] okay?
Appellant nodded.
Thereafter,
Investigator Gamble read appellant his Miranda
rights from a form as appellant, looking at the form,
followed along. Once he finished reading, Gamble asked
appellant whether he had any questions (a question appellant
answered by "shak[ing his] head no") and whether he
understood his rights. Appellant responded that he did. When
Investigator Gamble then asked appellant whether he
"wish[ed] to answer any questions," and appellant
responded, "No," Gamble stated, "All right.
That's it then."
As the
investigators begin gathering their materials to leave the
room, appellant inquired, "How I got charged with a
gun?" Gamble responded, "Well[, ] I'm not gonna
answer your questions if you're not gonna answer
mine[]." Appellant replied, "I mean I'll answer
questions. I ain't got no problems answering no
questions." Gamble then retrieved a new Miranda
form, reread appellant his rights, and asked the required
questions again. This time, appellant agreed to answer
questions outside the presence of an attorney.
The
investigators then questioned appellant over a period of
about an hour and fifteen minutes (interrupting the interview
at one point after appellant said that he needed to use the
restroom). The investigators began by asking appellant to
explain "why [he] started running" when officers
arrived. Appellant first said that he did not know that the
men who approached him were officers, even though they were
in uniform. When Investigator Gamble again asked why
appellant had run, appellant eventually explained that he and
the man he was with when officers arrived were in the area
because that man, whom he did not really know, had asked
appellant to give him a ride to an apartment building there.
Appellant said that he had no idea what the other man was
planning to do at the building. Appellant continued, "So
then - so we couldn't get in the building . . . . So when
we start walking back off[, ] he was just like, man run. I
don't know what he had did. When the police had pulled
up[, ] and he was like run, I just ran. That was it."
When
Investigator Gamble told appellant that the other officers
had reported that appellant had a gun on him, appellant
denied that he had a gun (saying instead, "I had a knife
on me, man."). In response, the investigators told
appellant that his denials were "not gonna cut it."
Appellant responded, "I already know it ain't gonna
cut it right here." Investigator Gamble urged appellant
to provide "a reason" why he had the gun, such as
"someone's out for me," suggesting that
"maybe they can work with that." Gamble told
appellant that if he were to go "in front of th[e] judge
and say, I didn't have a gun on me, . . . they're
gonna look at [appellant's prior convictions for] armed
robbery, previous arrest with the gun, [and the] officer
saying [appellant] had the gun," and appellant would be
"done. Right?" Appellant agreed, saying "Um
hmm." Appellant also agreed with Gamble's
observation that the gun made it look like he was "there
about to rob somebody again" and acknowledged that
"[w]ith my background[, ] [the judge or jury] gonna
believe [what the officers have to say]."
Throughout
the interview, Gamble suggested that appellant's
possession of the gun had already been established, stating
at one point, "[W]e don't really need to talk.
Because from what they're telling me[, ] they got
you." Gamble further told appellant, "I'm not
even trying to get you to say, yeah[, ] I had a gun, because
we know you had a gun. I'm trying to figure out why you
had a gun." Gamble told appellant that the investigators
"need[ed] to hear a reason," such as that appellant
had "an ex-girlfriend . . . who [had] threatened"
him, or that appellant's friend "handed [him] a
gun" and "said hold this for a second," or
that appellant "needed a gun [be]cause he thought [other
people] were gonna kill him . . . . [or that] [t]hey might
even go kill his grandma . . . ."
The
investigators also told appellant that this was his chance to
"lessen the damage" by informing them of the reason
for his possession of the gun. Investigator Gamble told
appellant that if the person to whom he had given a ride
"did something wrong up in that apartment[, ] you're
facing that too."
When
appellant continued to deny possession of the gun (he asserts
that he did so "twenty times"), Gamble finally
stated, "All right[, ] man. I mean, we don't want to
keep going round and round with you, but you got - this is
it. I don't think we have much more. So you sure? You
don't want to go over this story one more time from the
beginning?" This time - just after telling Investigator
Danho (who had stood after telling appellant that the
investigators would "give [him] a few minutes") to
"sit down" again - appellant confessed. Appellant
told the investigators that he and the man to whom he had
given a ride went to the building to "sell the gun to
somebody, "[5] and that because "the [other
man's] shirt . . . was too small" or "too
short" to conceal the gun, appellant "held the
gun" ("just grabbed [the gun] and tucked it"
in his jeans) for the other man. Appellant said that the gun
had a "wood handle" and stated that the gun must
have fallen out of his pants when he tripped and fell during
his flight from the officers. Shortly after appellant made
that statement (at approximately 6:43 p.m.), the interview
ended.
II.
Appellants Contentions and the Standard of Review
Appellant
contends that the trial court erred in ruling that his
confession was admissible and in denying his motion to
suppress. He asserts first that "when police administer
proper Miranda warnings and secure a valid waiver .
. . but then contradict or undermine the warning, any
subsequent statement is inadmissible," because "a
suspect who is misinformed about the consequences of
foregoing his right[s] . . . cannot have knowingly,
intelligently, and voluntarily waived that right . . .
." He argues that this is what happened here: that
statements by Investigators Gamble and Danho contradicted and
undermined the Miranda warning, rendering
appellant's prior waiver ineffective with respect to the
statements he made toward the close of the interview.
Appellant also argues that the interrogators' tactics
rendered his confession coerced and involuntary.
The
facts of what occurred during the interrogation, captured on
video and transcript, are not in dispute. Appellant's
claims raise entirely legal issues, as to which our review is
de novo. See Dorsey v. United States, 60 A.3d 1171,
1190 (D.C. 2013) (en banc) ("[O]ur review of the trial
court's legal conclusions is de novo.");
see also id. at 1190 ("[W]hether [the
defendant] validly waived his Fifth Amendment rights and
voluntarily confessed" "is a legal question subject
to our de novo examination.").
III.
Analysis
"The
rights expressed in the Miranda warning pertain
throughout the interrogation." Lee v. State, 12
A.3d 1238, 1246 (Md. 2011); see also Berghuis v.
Thompkins, 560 U.S. 370, 388 (2010) (explaining that the
interrogation process "provides the suspect with
additional information that can put his or her decision to
waive, or not to invoke, into perspective"). Thus, where
a suspect says that he will no longer talk and that he wants
a lawyer, Miranda requires the authorities to stop
the interrogation cold, even after initially obtaining a
valid waiver. See 560 U.S. at 388 ("If the
right to counsel or the right to remain silent is invoked at
any point during questioning, further interrogation must
cease."). "[T]he individual's right to choose
between silence and speech [must] remain[] unfettered
throughout the interrogation process." Miranda,
384 U.S. at 469. This court and others have recognized that
this means that "the interrogator may not say or do
something during the ensuing interrogation that subverts
th[e] [Miranda] warnings and [prospectively]
vitiates the suspect's earlier waiver by rendering it
unknowing, involuntary, or both." Lee, 12 A.3d
at 1241, 1250-51 (holding that an officer's statement
that the interrogation is "between you and me"
subverted the Miranda warning that any statement the
suspect makes "can and will be used against" him,
"rendering in violation of Miranda all
statements the suspect thereafter made during that
interrogation").[6] This court found a vitiation of a prior
waiver in Di Giovanni v. United States, 810 A.2d 887
(D.C. 2002). The opinion in that case recounts that when
suspect Di Giovanni asked the police sergeant "whether
he needed a lawyer at that point in time[, ]" the
sergeant "responded that he would need one later, but
that at that time he did not think Di Giovanni needed
one" and that "it would be best if [Di Giovanni]
told [his] side of the story." Id. at 890. We
concluded that "in the totality of the circumstances,
[the sergeant's] embellishments and directives that Di
Giovanni didn't need a lawyer vitiated the validity of
his waiver." Id. at 894.
Here,
similarly, we agree with appellant's argument that when
an interrogator or interrogators make statements during a
post-waiver interrogation that are contrary to what the
suspect was told when he was read his Miranda rights
and agreed to talk to the police without counsel, those
statements may, in the totality of the circumstances,
effectively nullify the waiver and render inadmissible any
statements the suspect makes from that point on. The issue we
confront is whether, in the totality of circumstances, that
result ensued from appellant's custodial interrogation by
Investigators Gamble and Danho. The totality of the
circumstances includes, inter alia, a suspect's
"prior experience with the legal system, evidence of
coercion or trickery, cognitive ability . . . [, and the]
delay between arrest and statement." Robinson v.
United States, 928 A.2d 717, 725 (D.C. 2007).
Appellant
points to several statements made by the investigators that
he contends undermined the Miranda warnings and
vitiated his waiver. Below, we consider the statements in the
context of the totality of circumstances to determine whether
any of the statements, by themselves or in combination, had
that effect and rendered appellant's waiver ineffective.
A.
Whether appellant's Miranda waiver was
vitiated
1.
Appellant's background and the interrogation
conditions
The
record indicates that at the time of his interrogation,
appellant was thirty-one-years-old, had a criminal history
that included convictions for robbery and CPWL, and, as he
told the investigators during the interrogation, had
"been locked up before" and was "familiar with
the system." Prior to the interrogation, appellant had
not "been drinking or smok[ing] anything." After
entering the interview room, appellant placed his arms inside
the torso section of his short-sleeved T-shirt (as if for
warmth) and held them there for most of the interview, but
seemed relaxed[7] and exhibited no signs of physical or
mental distress during the interview.[8] Officers had encountered and
arrested appellant at approximately 2:42 p.m., and
Investigators Danho and Gamble began interviewing appellant
at approximately 5:28 p.m. the same day, ending the interview
approximately one hour and fifteen minutes later, at 6:43
p.m. Several times during the interview - including just
before he confessed - appellant took long pauses before
answering the interrogators' questions, apparently taking
his time to think through the implications of his decision
about what to say and whether to answer the
investigators' questions (as if performing his "own
balancing of competing considerations," State v.
Owens, 643 N.W.2d 735, 751-52 (S.D. 2002)). Throughout
the interview, the investigators never raised their voices,
and they accommodated appellant's request to use the
bathroom. Appellant was informed that he was "under
arrest" and was read his Miranda rights
(twice), and he told the investigators, "I understand my
rights, man."
We can
discern nothing in the foregoing context and circumstances
that gives us concern that appellant did not understand his
rights at the time he confessed. We now go on to consider the
investigators' statements and appellant's arguments
based on them.
2.
Statements that appellant contends disparaged his right to
have counsel present during the interrogation
Appellant
argues that the interrogators subverted the Miranda
warning by disparaging his right to counsel. He focuses on
...